Citation Nr: 1802224 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-11 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to service connection for nasal polyps. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1962 to June 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains complete VA treatment records up through January 2014. Otherwise, LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Remand is necessary to satisfy VA's duty to assist the Veteran. Specifically, the Board finds that further development is required and that the Veteran should be afforded examinations. First, remand is required to attempt to obtain any outstanding records of treatment from active service. VA's duty to assist claimants to obtain evidence needed to substantiate a claim includes making as many requests as are necessary to obtain relevant records from a Federal department or agency. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). In correspondences received in November 2012 and March 2014, the Veteran described seeking treatment for low back symptoms a number of times while he was stationed at Fort Benning, Georgia. He also indicated that he was treated for pneumonia at a hospital while he was stationed at Fort Benning. Records of this treatment are not included in the service treatment records that were received by VA in July 2012. In the March 2014 correspondence, the Veteran suggested that his medical records were not complete. On remand, additional efforts should be made to ascertain whether outstanding records of clinical treatment exist that pertain to the Veteran's claimed respiratory and orthopedic disorders. Second remand is required to obtain private treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). In a March 2014 statement, the Veteran indicated that he sought treatment for his symptoms post-service when he was 21 from a Dr. B in Shreveport, Louisiana. The RO has not yet attempted to obtain these records. Any other outstanding relevant private treatment records should be obtained as well. Third, remand is required to obtain VA examinations. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's claim of entitlement to service connection for a respiratory disorder, VA treatment records show treatment for chronic obstructive pulmonary disease (COPD). In addition, the Veteran has credibly described shoveling coal and being exposed to coal dust during service and receiving treatment for diagnosed pneumonia during service. In light of the low threshold set by McLendon, and because the Veteran's statements suggest an in-service event and that his current respiratory disorder may be associated with his service, an examination is warranted on remand. For similar reasons, an examination is warranted for the Veteran's claimed nasal polyps. VA treatment records as late as August 2011 document a present diagnosis of nasal polyps. In a March 2014 statement, the Veteran expressed his belief that nasal polyps had onset as a result of his exposure to coal dust while shoveling coal at Fort Benning and due to his in-service cigarette smoking. VA treatment records document current tobacco use as well. In any event, the Board finds that an examination is warranted because the Veteran has provided credible statements indicating that he was exposed to coal dust during service and a present diagnosis. His statements also meet the low threshold set by McLendon, as there is an indication that his current symptoms may be related to service. Finally, the Board finds that an examination is warranted for the Veteran's claimed low back disorder. VA treatment records document chronic low back pain and lumbar radiculopathy. A January 2011 VA treatment note refers to an August 2007 of the MRI of the lumbar spine showing spondylosis and a disc bulge at L5-S1. Thus, there is competent evidence of a diagnosed low back disorder. In November 2012 and March 2014 statements, the Veteran indicated that he first hurt his back while carrying artillery shells at Fort Seals. He explained that he did not seek treatment with a doctor at sick bay because he did not want to miss too much time in training. After arriving at Fort Benning, he sought treatment three to five times. The Veteran reported that he was informed not to return for treatment. The Veteran also reported that post-service, when he was approximately 21 years old, he was informed by a doctor in Shreveport, Louisiana, that he would need surgery on his back because a disc was bulging. The Veteran described having back pain throughout his years of post-service employment. These statements describe an in-service event and treatment for low back symptoms. Though the records of this treatment are not currently included in the service treatment records, additional development is pending on remand. Regardless, the Board finds that there is an indication that the Veteran's claimed low back disorder may be associated with an in-service injury first incurred while the Veteran was lifting artillery shells during service. The Veteran has reported that he had continuing symptomatology since service. Thus, an examination is warranted on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Obtain outstanding service treatment records. In particular, the Veteran has described receiving treatment for pneumonia at a hospital while he was stationed at Fort Benning, Georgia. He also indicated that he went to sick call on a number of occasions for low back symptoms. The AOJ must attempt to obtain separate clinical records if possible. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. In particular, the Veteran has described receiving a diagnosis of a bulging disc from a doctor in Shreveport, Louisiana, when he was 21 years old. Efforts must be made to ascertain whether records of such treatment exist, and, if so, to obtain these records. Efforts to obtain any other relevant private treatment records identified by the Veteran should be obtained. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed respiratory disorder, to include COPD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a. The examiner must ascertain what respiratory disorders the Veteran has had during the appeal, including COPD, sinusitis, allergic rhinitis, and nasal polyps. b. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed disorder, including COPD, sinusitis, and allergic rhinitis, had onset in or is otherwise related to the Veteran's military service. The examiner must specifically address the following: 1) the Veteran's credible statements indicating that he was exposed to coal dust during service; and 2) the Veteran's statements that he received treatment for pneumonia during service and was informed that he had scarring on his lungs. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed nasal polyps. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a. The examiner must ascertain whether the Veteran has a present diagnosis of nasal polyps during the claim and appeal period. b. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that nasal polyps had onset in or are otherwise related to the Veteran's military service. The examiner must specifically address the Veteran's credible statements indicating that he was exposed to coal dust during service. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his low back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disorder had onset in or is otherwise related to his military service. The examiner must specifically address the following: 1) the Veteran's credible statements indicating that he injured his low back while lifting and moving artillery shells during active duty; and 2) the Veteran's statements describing continuing symptomatology since service. 7. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 8. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 9. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).